Recent Articles

AP Photo/Susan Walsh O ne of the central arguments made by In the Balance , Mark Tushnet's terrific new book about the current Supreme Court bench ( reviewed here by Garrett Epps ), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with. When I say "many liberals," I include myself . My skepticism about the nomination, I should clarify, was not because I thought Kagan was a bad or unqualified nominee, or because I thought she was a closet reactionary. In the context in which Democrats had a...

Earlier this week, the 6th Circuit Court of Appeals rejected claims stating the requirement that corporations performing secular functions—in this case, the manufacturing company Autocam—cover contraception as part of their employee-insurance packages represented a violation of these corporations' rights. The 6th Circuit is the second circuit court to reject these claims, following the 3rd Circuit (conversely, the 10th Circuit held that there was a "likelihood" that the Hobby Lobby chain of craft scores was " substan tially burdened" by the requirement.) Perhaps even more interesting is the reasoning the 6th Circuit panel used to reach its decision. According to the court's persuasive argument, it is not possible for a for-profit corporation with secular purposes to "exercise" religion in a way protected by the Constitution or federal statues. To provide the relevant background, the most obvious source for a claim that the contraceptive coverage requirements violate religious freedom...

L ast month, it was revealed that the court established by the Foreign Intelligence Surveillance Act (FISA) had rebuked the National Security Agency (NSA) for using illegal search methods. Not surprisingly, this incident wasn't an isolated one. In another judicial opinion responding to a lawsuit by the Electronic Frontier Foundation (EFF), further illegal abuses by the NSA were unveiled . Like the previous revelations, this story tells of the dangers posed by a NSA conducting searches with far too broad a scope and too few constraints. The latest NSA abuses involve the database of phone calls made by Americans compiled by the NSA. Phone companies have been ordered to turn over "metadata" about the calls made by their customers. The NSA keeps five years of this metadata on file at any given time. When the agency makes queries into the database, however, it is required by the FISA court to have a "reasonable articulable suspicion" that the call involves communication with a terrorist...

Nicholas Kristof has a column that exemplifies why the case for bombing Syria is so unconvincing. There's a fundamental bait-and-switch at the heart of the article, using the (uncontested) fact that Syrian President Bashar al-Assad is a monstrous tyrant to skate over the question of what exactly airstrikes against Syria would do about it. Over and over again, Kristof notes the death toll of the civil war in Syria: It’s all very well to urge the United Nations and Arab League to do more, but that means that Syrians will continue to be killed at a rate of 5,000 every month. So far, we’ve tried peaceful acquiescence, and it hasn’t worked very well. The longer the war drags on in Syria, the more Al Qaeda elements gain strength, the more Lebanon and Jordan are destabilized, and the more people die. It’s admirable to insist on purely peaceful interventions, but let’s acknowledge that the likely upshot is that we sit by as perhaps another 60,000 Syrians are killed over the next year. Today,...

With Congress highly unlikely to take the initiative, Barack Obama did something unexpected and good for American constitutionalism: he asked for congressional approval for military action against Syria. His recognition that warmaking is fundamentally a shared rather than a unilateral presidential power is most welcome. But this victory for a more rational policy process will ring hollow if Congress gives the Obama administration everything it's asking for. Admittedly, not everyone sees Obama asking Congress to fulfill its constitutional responsibilities as a good thing. You may remember the second Bush administration from such events as ... oh, I don't know ... the several catastrophic foreign policy blunders that happened under its watch. Rather than permanently hiding their heads in shame, several architects of these military and human rights disasters are publicly complaining about Obama's turn from presidential unilateralism. John Yoo, the arbitrary torture advocate and producer...